Public prosecutor, private advocate

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Dear Learned Friends,

In a criminal matter, there is a complainant and there is an accused.

I want to know when a public prosecutor represents a victim and when does a private advocate represent a victim. Is it that if a victim does not have the means to afford a private attorney then only the state provides him the services of a public prosecutor?

And, if the accused can afford an private defence lawyer, then the state provides the accused the services of an advocate. what are these advocates provided by state for the accused known as?

 
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Lawyer in Hyderabad.Email Id:ramachary64@gmail.com

lawyer for defence

 
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Dear Ramchary64, My main question in the first paragraph remains unanswered
 
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Student

Dear Amit,

A crime is considered as a wrong against the society and hence the state prosecutes the accused. The lawyer of the state is called the public prosecutor. in effect, he is advocating the claims of the victim. However, the victim May, pursuant to section 24 of the Code of Criminal Procedure engage his own advocate to aid or assist the public prosecutors arguments. Meaning if you don't trust the PP to do a good job, hire a good lawyer. Hope this helps!


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Advocate

Originally posted by : AMIT

Dear Learned Friends,

In a criminal matter, there is a complainant and there is an accused.

I want to know when a public prosecutor represents a victim and when does a private advocate represent a victim. Is it that if a victim does not have the means to afford a private attorney then only the state provides him the services of a public prosecutor?

And, if the accused can afford an private defence lawyer, then the state provides the accused the services of an advocate. what are these advocates provided by state for the accused known as?

Amit,

I am answering your question point wise as you re-asked about your first paragraph to be explained in more clear manner.

My answer:

When a complaint is made on Police Station and Police investigates the matter, files chargesheet in court and court starts trial - then the Public Prosecutor represents the victim.

 

When the complainant files complaint in court directly (instead of going to Police Station) and court starts proceeding the case, then the complainant's advocate(mostly private - except murder or same kind of serious offence) represents the case until court appoints any public prosecutor if necessary. 

 

Moreover - to appoint a private advocate for the victim, you need to take permission of public prosecutor allotted to the case by court, and the private advocate will be treated as assistant of the public prosecutor, not as representing lawyer.  This matter totally depends on the public prosecutor - whether he agrees or not to take any private advocate's assistance.

 

Mostly in case of non-criminal cases - private advocate can represent the victim. Court always appoints public prosecutor(s) in criminal offences. 

 

You should consider the answer in simple manner as:

 

State of XYZ(concerned state of judiciary) or Union of India VS Accused in criminal cases. 

 

Party A VS Party B in civil cases.


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Dear Mr. Garv and Dear Shri R S Rashmi,

I am completelt satisfied with your answers and am very thankful to you for taking out your valuable time to explain the matter in an easy to understand manner.

Thx again sirs

 
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in simple manner even you can pray the court that you want to take a private lawyer services in place of PP and court will grant you permission immeditely 

 
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EXPERT/ADVOCATE

S.301(2)/302of criminal procedure code is an enabling provision to help you engage a private lawyer/oneself who under the supervision of the Public prosecutor can assist in your case even if it is a state case.

Now the catch--- Not many know of this:

S.301 uses the word Magistrate .:( Does that mean this isn't applicable to Sessions trial? Also S.226 Cr.P.C. expressly states that a sessions trial must be conducted by a Public Prosecutor....

 

The answer is in implied meaning behind S.397 wherein a 3rd party can point to illegality/impropriety of an order at the stage of Revision.

The moot point is thus:When it can be done @a later stage why not during trial itself?

I hope this is sufficient...In fact this is enough gunpowder for you to argue even before an August forum.

God Bless

ADV.Sidharth Arora

9560601768

 
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Advocate

Originally posted by : Adv k . mahesh

in simple manner even you can pray the court that you want to take a private lawyer services in place of PP and court will grant you permission immeditely 

Sorry to say - but whatever you have said is totally incorrect and misleading. 

No court will allow plaintiff party to project their own advocate in the trial - because it's the matter of state judiciary (whenever it's a criminal offence i.e. in case of criminal case) - and state judiciary is in the hand of the acting(as in a trial period - judges and magistrates might be changed per date  of trial) judges or magistrates  of every criminal case.

No judge or magistrate will allow you to break PROTOCOL OF STATE JUDICIARY.

 

And yes - if you file a strong appeal at HIGH COURT under the judicial territory of the case -  HIGH COURT will appoint an AMICUS CURIAE not a private lawyer of plaintiff's choice.

The AMICUS CURIAE will observe the case in each dates of trial and and also observe if Public Prosecutor isn't leading towards proper manner or motivated by accused - and then submit his report to HIGH COURT or the JUDGE of the CASE - but AMICUS CURIAE isn't too allowed to defend the case on behalf of plaintiff, replacing the Public Prosecutor appointed by court for the trial period of the case.

 
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in some cases everyone has to agree as per the rules framed by the law in our country not only you but everyone 

and before making any statement i make my self confident about the STATEMENT AND THEN ONLY I WILL ANSWER and never critisize any one like in in public forum R S Rashmi

"Sorry to say - but whatever you have said is totally incorrect and misleading"

go through this statements which are made by our law commission 

 

Legal aid at State expense in certain cases
This is not a right available to all the accused but to certain category of accused as a privilege. So where, in a trial before the Court of Session, the accused is not represented by a pleader, and the court believes that he does not have sufficient means to engage a pleader, it shall assign a pleader for his defence at the expense of the State, under section 304 of CrPC.

Section 304 in The Code Of Criminal Procedure, 1973

 

304. Legal aid to accused at State expense in certain cases.
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules providing for-
(a) the mode of selecting pleaders for defence under sub- section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.

Section 304 of the Cr.P.C.- Legal aid to accused at State expense in certain cases. - Availing assistance of a lawyer to defend is fundamental right of an accused.

 
The honourable Supreme Court of India while deciding CRIMINAL APPEAL NO . 1091 OF 2006 filed by Mohd. Hussain @ Julfikar Ali has confirmed the right to fair trial as a fundamental right of an accused. The honourable Court, however, at the same time has held that, mere delay in trial cannot be a ground by itself to justify discontinuance of prosecution or dismissal of indictment. The honourable Supreme Court has further held that, the factors concerning the accused’s right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. On 30.12.1997 at about 6.20 p.m. one Blueline Bus No. DL-1P-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at Rampura Bus Stand at Rohtak Road for passengers to disembark. The moment the bus stopped, an explosion took place inside the bus. The incident resulted in death of four persons and injury to twenty-four persons. The FIR of the incident was registered and investigation into the crime commenced. On completion of investigation, the police filed a charge-sheet against four accused persons – one of them being the present appellant, a national of Pakistan – for the commission of offences under Sections 302/307/120- B of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, 1908. The appellant and the other three accused were committed to the Court of Session. The three accused other than the appellant before the honourable Supreme Court were discharged by the Additional Sessions Judge, Delhi. The appellant was charged under Sections 302/307 IPC and Section 3 and, in the alternative, under Section 4(b) of the ES Act, and was then convicted and was awarded death sentence, which was confirmed by the honourable Delhi High Court. The honourable Supreme Court of India has declared that, the necessity of a counsel in a criminal trial is so vital and imperative that the failure of the trial court to make an effective appointment of counsel amounts to denial of due process of law. Absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 Cr.P.C. The honourable Supreme Court has directed de-novo trial of the accused from the stage of prosecution evidence.
 
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